WindsorCityBlog

Friday, June 29, 2007

Spice Girls Are Not Coming To Windsor

In case you are wondering and praying that we had a chance, the Spice Girls Reunion tour will not be coming to the Windsor East End arena. Sorry to end people's hopes.

It has nothing to do with concerns about Canada Customs delaying tour buses full of groupies coming over here to see the show. Mind you I hear that they have bothered a bus full of American tourists for hours at a time. A nice way to welcome them to our country and to encourage them to return.

The question is whether a sound sytem was ever added to the arena so concerts like this could play there or will the only significant Windsor entertainment outlet be at the Casino?

Here's the official word:

"The Spice Girls will kick off the tour in Los Angeles on December 7.

They will also visit Las Vegas, New York, Cologne, Madrid, Beijing, Hong Kong, Sydney, Cape Town and Buenos Aires. There will be one UK gig, which takes place in London on December 15."

Even More Thoughts

Here are some additional matters that I considered over the past few days

THERE IS NO BORDER CROSSING ISSUE

I told you what was in Sandra Pupatello's pre-election mailing to constituents--or rather what was NOT in it: any discussion about the border.

Did you read the big guest column in the Star from Dwight Duncan. Someone at the Star has a perverted sense of humour. It was the column placed right beside the Star Editorial demanding that

"The Liberal government has a responsibility to voters in this community to tell us before the election where it stands on the project that will define this community for generations to come."

Try and find the word "border" in Dwight's column just as I defy you to find it in Sandra's brochure. It is not there.

The only logical conclusion that I can draw is that there is no border problem since the Ambassador Bridge has dealt with the matter so well and that they will be allowed to build their Enhancement Project. Our two MPP/Cabinet Ministers know that and that is why they do not have to talk about the border any more.

The announcement to permit the Bridge Co. to go forward will not be made however until after the election since the politicians fear they might lose a few votes. It seems though that their campaign people have not considered that they might actually gain votes if a multi-hundred million dollar project actually starts up now so thousands of people can have jobs!

CAN AMBASSADOR WILSON AND TRANSPORT MINISTER CANNON GET THEIR ACT TOGETHER

It's not bad enough that the border crossing matter has dragged on for so long and that each party is fighting each other party with nothing being accomplished except enriching consultants and lawyers. Now it is not clear what the position of Canada's New Government is. That's the name that Stephen Harper uses to distinguish his Government from Canada's OLD Government whatever that was, it's been so long.

We all thought that Transport Canada was in charge of the file but that is not necessarily the case. It might be all a ruse in the same way that Donna Cansfield is really not in charge from Ontario's perspective but is merely the front-person to take the hits on the file.

We should have figured it out when the Foreign Affairs Dept. through the Detroit Consulate paid for Eddie's baseball tickets. When Michael Kergin was retained by McGuinty we should have assumed that naturally he would talk to his former buddies in Foreign Affairs rather than in Transport. After all, it is a Canada-US issue and that requires the expertise and finesse of the people in the Ambassador's Office.

Why do you think that Minister Cannon came down here to visit with the Governor. It was a last minute trip. By my reckoning, they may have had a whole hour to talk together...hardly the time to achieve anything significant. Nope, the Minister came down here for the publicity of the news story and photo op at the Art Gallery so he could show his face to try and keep control of the border file for his Department.

There is a turf war going on between Transport and Foreign Affairs!

Of course he is in a losing fight. The Globe and Mail story on the Bridge Co. shook up the Prime Minister's Office and suggested that Transport was in big trouble with DRIC. That meant the Government strategy is in shambles now and there was a need to regroup.

I am sure that the Ambassador was called in since he was involved with the PC Government that settled the FIRA fight with the Bridge Co. years ago.

Here's the problem....No one knows what Canada's position is any more. It is chaotic. There are conflicting messages being given. We get the Ambassador saying one thing, the Minister saying something totally different. In fact the Minister when he was here the other day did not even visit the Bridge Co. Is he afraid of something to talk to them? Afraid to learn the truth that his bureaucrats have been hiding from him? At least the Ambassador and the Ambassador Bridge Co. were in Mackinac together so might have met on the porch of the Grand Hotel for a coffee!

We know that Minister Cannon just came back from visiting the Governor and wants public ownership of the new crossing. Yet we have the Ambassador, in words similar to Canada's Senate saying

"...we have to take into account the interest of the private sector to make sure that the things that they feel are important, the things that feel must be taken into account in the decision making process are critical to the success of whatever comes out of the other end process.

An over-riding principle has to be that we have got to do this carefully, we have to listen to all those different points of view as we go through this."

Would Canada's New Government finally figure out please what their position is so that it can achieve a solution that Canada's Old Government could not!

ECONOMIC PROSPERITY IN WARD 2

Economically speaking, life must be good in the West Eend.

Let's see now, the Ward Councillors are opposed to the multi-hundred million dollar investment in their Ward by the Bridge Co. They are giving George Sofos a hard time with his $200,000 investment in the Junction. They voted against allowing Bushante Development Group the right to demolish a 400 sq ft house and build a double-duplex for students.

Didn't Ward 2 also lose the downtown arena to the East end?

I guess they just do not need anything more from an economic perspective with the promise of the urban village errrrrr University Engineering complex.

And speaking of Ward 2, some very harsh language about Ward 2 between Councillors Halberstadt and Postma at the last Council meeting involving the word "ghetto," or a variation of it, that may require the Governor's Hubby to come back and do some follow-up work to prevent fisticuffs on Cogeco.

It's all just playing to the crowd on TV in reality. Why Councillors and candidates for office say all kinds of things during a campaign they would hope that people would forget. But some people have very good memories!

INCORRECT HEADLINE

The Star headline read "Ottawa banks $400M to fund new crossing."

Actually that money was set aside in the Federal budget supposedly to help finance the road to the border:

"Responsibility for the access road that will link the bridge with Highway 401 rests with the Province of Ontario. To help support this important component of the new crossing, Canada's New Government will make a contribution to cover 50 per cent of the eligible capital cost of building the access road. This contribution will come from the new national fund for gateways and border crossings. Budget 2007 sets aside $400 million from this new national fund for this important project."

DO NDPers USE THE AMBASSADOR BRIDGE

Do not believe a word when Socialists demand that a new bridge be publicly owned in Windsor. They do not really mean it obviously. If they have a choice to go into the US to shop or dine, it is now absolutely clear that their crossing of choice is the privately run and owned Ambassador Bridge and NOT the Cities-owned Detroit-Windsor Tunnel. Even Socialists do not like to wait in long lines.

How can I say this? Simple. Take this recent quote from Brian Masse:

"I believe in public ownership and will fight the campaign to keep it that way," he said. "We will have lower fares, greater accountability and we can afford to do it. And more importantly, it's done like that everywhere else."

Masse said that the only U.S.-Canada crossing with higher fares than the privately owned Ambassador Bridge is the International Bridge at Sault Ste. Marie, the only other privately owned bridge.

"I'm concerned that we could be introducing a fee here that would be borne by Windsor residents disproportionately because we use the border more than anyone else," he said. "In fact, 50 per cent of the crossing is local."

If Brian ever took the Tunnel, then he would know, as I have pointed out many times before on here, that his information is incorrect. The Tunnel round-trip fare is $8.75 while that of the Bridge is only $8. The Tunnel is the higher fare. He must never use the Tunnel since he is so familiar with the Bridge Co. tolls. In fact, he must not even consider that the Tunnel is important or viable in the long-run.

Perhaps he could phone our Mayor and ask him why he values the US half at US$75M if few use it.

Oh and Brian's facts are not correct. The International Bridge is not privately owned either. "Its day to day operation is carried on by the International Bridge Administration (IBA) under the supervision of the Joint International Bridge Authority." Brian must be thinking about the Fort Frances-International Falls bridge.

It's scary that he is our MP and says he knows so much about the border. Do you think he might be a source of confusion if he cannot get his facts straight!

"We have to be very vigilant ... in keeping an eye on things, he said. "I know our building inspection people are monitoring the situation."

The Sandwich Street home is the second vacant house in the area to go up in flames in the past couple of months, said Jones.

Jones said he plans to discuss the situation with the city's chief building official and chief fire prevention officer."

I have this goofy idea. Tear down a bunch of abandoned homes on Indian Road and use the Green Corridor group to suggest ideas about how the neighbourhood can be improved. I'll let Councillor Jones take the credit for this idea and will allow him to introduce a Motion at Council about it.

The City appellant passed an interim control by‑law which effected a one‑year freeze on all land development along a particular corridor. RSJ, one of the affected land owners, applied for an order quashing the by‑law for illegality on the ground that the City discussed, and then effectively decided to pass the by‑law at two closed meetings, contrary to the City’s statutory obligation under s. 239(1) of the Municipal Act, 2001, to hold council and committee meetings in public. The Ontario Superior Court of Justice dismissed RSJ’s application, but the Court of Appeal set aside that decision and quashed the by‑law. The City’s argument before this Court was that its meetings fell within the exception in s. 239(2)(g) of the Municipal Act, 2001 because, under s. 38 of the Planning Act, an interim control by‑law may be passed without prior notice and without holding a public hearing. Alternatively, the City argued that the Court of Appeal erred in quashing the by‑law in the absence of any prejudice to RSJ.

Held: The appeal should be dismissed.

The interim control by‑law provisions contained in the Planning Act in no way obviate the statutory requirement to hold public meetings under s. 239 of the Municipal Act, 2001. It cannot be implied from the dispensation with any notice and hearing requirements under s. 38(3) of the Planning Act, that s. 38 authorizes the holding of a closed meeting within the meaning of the exception found in s. 239(2)(g). The City’s duty to give advance notice and to hold a public meeting at which interested citizens have the right to make representations is entirely distinct from its obligation to hold its meetings in public. Dispensing with notice and a hearing as permitted under s. 38(3) enables a municipal council to act expeditiously in passing an interim control by‑law whenever circumstances may require that it do so and, as such, this is consistent with the nature of this extraordinary zoning tool. However, the discussions on the interim control by‑law must still be conducted in open public session. The open meeting requirement set out in s. 239 concerns a citizen’s rights to observe municipal government in process and reflects a clear legislative choice for increased transparency and accountability in the decision‑making process of local governments. [4] [30‑32]

The Court of Appeal properly exercised its discretion in quashing the by‑law for illegality under s. 273 of the Municipal Act, 2001. In exercising its discretion, the court cannot act in an arbitrary manner, and the discretion must be exercised judicially and in accordance with established principles of law. On the question of deference, municipalities do not possess any greater institutional expertise on the issue of “illegality” than the courts. Furthermore, when a municipal government improperly acts with secrecy, this undermines the democratic legitimacy of its decision, and such decisions, even when intra vires, are less worthy of deference. In this case, the City acted within its jurisdiction in passing the interim control by‑law, but illegality under s. 273 is not strictly confined to matters of jurisdiction. The failure to comply with statutory procedural requirements may also provide sufficient grounds for quashing. The City’s conduct in closing the two meetings in question was neither inadvertent nor trivial and the short public session during the course of which the interim by‑law was passed without debate or discussion along with several other by‑laws did nothing to cure the defect. While RSJ did not have the right to notice of the City’s intention to pass the by‑law nor any right to make representations at a public hearing, it did have the right, along with other citizens, to a transparent and open process. In these circumstances, the contention that RSJ suffered no prejudice cannot be accepted. The Court of Appeal was correct to conclude that the potentially draconian effects of interim control by‑laws accentuate the need for the courts to jealously require that the meeting in which an interim control by‑law is discussed be open to the public as required by s. 239(1) of the Municipal Act, 2001. In the circumstances, quashing the by‑law was an entirely appropriate remedy. [4] [37‑43]

The judgment of the Court was delivered by

Charron J.—

1. Overview

1 On January 19, 2004, the City of London (“City”) passed an interim control by-law which effected a one-year freeze on all land development along the Richmond Street Corridor between Huron and Grosvenor Streets. RSJ Holdings Inc., one of the affected land owners, applied for an order quashing the by-law for illegality on the ground that the City discussed, and then effectively decided to pass the by-law at two closed meetings, contrary to the City’s statutory obligation under s. 239(1) of the Municipal Act, 2001, S.O. 2001, c. 25, to hold council and committee meetings in public.

2 RSJ’s application was dismissed in first instance on the basis that the closed meetings in question fell within the statutory exception under s. 239(2)(e), allowing for a closed meeting when potential litigation is the subject matter under consideration. Having so concluded, the application judge found it unnecessary to deal with the City’s additional contention that the closed meetings were also authorized under s. 239(2)(f) because the subject matter under consideration was subject to solicitor-client privilege. In response to RSJ’s appeal to the Court of Appeal for Ontario, the City reiterated its claims to litigation privilege and solicitor-client privilege. In addition, the City took the position that the closed meetings were authorized under another statute, hence triggering the exception under s. 239(2)(g). The Court of Appeal for Ontario rejected the City’s arguments, set aside the application judge’s decision, and quashed the by-law.

3 The City appeals from this decision on the ground that its closed meetings were authorized under another statute. Since neither notice nor public hearing is required before the passing of an interim control by-law under the provisions of the Planning Act, R.S.O. 1990, c. P. 13, the City contends that it may hold a closed meeting under s. 239(2)(g) when the subject matter under consideration is an interim control by-law. Alternatively, the City argues that the Court of Appeal erred in quashing the by-law in the absence of any prejudice to RSJ.

4 I would dismiss the appeal. In my view, the Court of Appeal was correct in concluding that the interim control by-law provisions contained in the Planning Act in no way obviate the statutory requirement to hold public meetings under s. 239 of the Municipal Act, 2001. I also conclude that the Court of Appeal properly exercised its discretion in quashing the by-law. The open meeting requirement reflects a clear legislative choice for increased transparency and accountability in the decision-making process of local governments. I do not accept the contention that RSJ has not suffered prejudice. If anything, the enactment of an interim by-law, given its powerful nature and potential draconian effect on affected land owners, enhances the need for transparency and accountability. Further, the City’s disregard of its statutory obligation to hold public meetings in this case was neither inadvertent nor trivial. In the circumstances, quashing the by-law was an entirely appropriate remedy.

2. Facts and Proceedings Below

5 In September 2003, a group of residents of London, Ontario, who lived around Richmond Street complained to the City about the increase of student housing in their residential neighbourhood. In response, the City’s Planning Committee passed a resolution on September 29, 2003, requesting the City Solicitor to study the issue.

6 In November 2003, RSJ bought a residential property on Richmond Street with the intention of demolishing the existing building and constructing four individual residential units in its place. To this end, between November 2003 and January 2004, RSJ submitted to the City a site plan for approval, applied for a demolition permit, and applied for a building permit. The City took no action in respect of RSJ’s applications.

7 In response to the Planning Committee’s request of September 29, 2003, the City Solicitor delivered a report to the Planning Committee at its meeting of December 8, 2003. The City Solicitor reported on the prospect of regulating the number of bedrooms in a dwelling unit, and on the use of s. 150 of the Municipal Act, 2001, to license student housing as a business but made no reference to the possible enactment of an interim control by-law.

8 In January 2004, the City considered the Richmond Street issue during the course of two meetings that were closed to the public. It is these two closed meetings that are at the heart of this appeal.

9 The City’s Planning Committee, composed of seven City Council members, held the first closed meeting on January 12, 2004. The Planning Committee’s public agenda revealed that a confidential matter was to be discussed at that meeting but did not disclose what it concerned. At the meeting, the Planning Committee considered a report by the City’s acting general manager of planning and development. The report recommended that a land use study be undertaken for properties along the Richmond Street Corridor between Huron and Grosvenor Streets, because of the concerns that had been expressed regarding the “potential impacts of [residential] intensification on the surrounding neighbourhood” (“Planning Report of R. Panzer”, Tab 11B in appellant’s record, at p. 71). The Planning Committee also considered a draft interim control by‑law which, if passed, would freeze all development in an area that included the part of Richmond Street where RSJ’s property was located.

10 The second closed meeting was held on the evening of January 19, 2004. The evening began with a public meeting of the 19-member City Council. Included on the public agenda was an item entitled “Committee of the Whole, in camera”. The Committee of the Whole is a standing committee of the City Council comprising all 19 members of the City Council. Its role is to make recommendations to the City Council. The agenda did not reveal the subject matter of the scheduled in camera meeting. The agenda also listed 14 by-laws that were to be read a first, second and third time. No reference was made to an interim control by-law in this list.

11 The City Council rose at 7:57 p.m. and went into the Committee of the Whole for its closed meeting. The City agrees that, during this closed meeting, the Committee of the Whole discussed not only the Solicitor’s report but also the planning report and the proposed interim control by-law that would freeze development around Richmond Street. The Committee of the Whole made two recommendations: first, that a land use study be undertaken concerning the area covered by the proposed interim control by-law; and, second, that City Council approve the proposed interim control by-law.

12 The City Council resumed in a regular public session at 10:22 p.m. The public meeting lasted until 10:30 p.m. During this eight-minute session, the City Council introduced, gave three readings to, and passed 32 by-laws, including the impugned interim by-law, without public debate or discussion.

13 RSJ brought an application under s. 273(1) of the Municipal Act, 2001 for an order quashing the interim control by-law for illegality on the ground that the City had contravened the general obligation under s. 239(1) of the Municipal Act, 2001 to hold all meetings in public. The Ontario Superior Court of Justice dismissed RSJ’s application ((2005), 10 M.P.L.R. (4th) 88). The application judge accepted the City’s contention that both meetings of January 12 and 19 fell within the exception under s. 239(2)(e) of the Municipal Act, 2001 which allows municipal councils to hold closed meetings where the subject matter concerns “litigation or potential litigation”. The application judge reasoned that there was no doubt that RSJ, in light of its investment in the Richmond Street property, would challenge the interim control by-law and therefore a real potential for litigation existed at the time of the closed meetings. Having so concluded, the application judge found it unnecessary to deal with the City’s additional contention that the meetings were also authorized under s. 239(2)(f) which allows for closed meetings where the subject matter concerns advice that is subject to solicitor-client privilege.

14 The application judge further held that any votes taken during the two closed meetings were procedural only and, as such, were permissible under s. 239(6)(b) of the Municipal Act, 2001. Finally, the application judge held that the City’s failure to comply with s. 239(4), which requires the City to state by resolution the general nature of the matter to be considered at the closed meeting, caused no prejudice and in no way affected the substantive validity of the by-law.

15 RSJ appealed the decision to the Court of Appeal for Ontario ((2005), 16 M.P.L.R. (4th) 1). The City reiterated its argument that the meetings were properly closed because they concerned potential litigation under s. 239(2)(e), and advice that was subject to solicitor-client privilege under s. 239(2)(f). In addition, the City submitted that the meetings fell within the exception under s. 239(2)(g), which allows for a closed meeting where the subject matter under consideration is a matter in respect of which a committee or council may hold a closed meeting under another Act. The City argued that, since neither notice nor public hearing is required before the passing of an interim control by-law under the provisions of the Planning Act, this constitutes “a matter in respect of which ... a closed meeting” can be held “under another Act” within the meaning of s. 239(2)(g). The Court of Appeal rejected all three arguments, and quashed the interim control by-law for illegality.

16 The City appeals this decision on the ground that the closed meetings were authorized under s. 239(2)(g) of the Municipal Act, 2001. Alternatively, it argues that the by-law should not be quashed.

3. Analysis

3.1 The Open Meeting Requirement

17 As we shall see, s. 239 of the Municipal Act, 2001 requires that all municipal meetings be open to the public, except where the subject matter being considered at the meeting falls within one of seven categories expressly set out in the statute. However, before reviewing the relevant statutory provisions, it may be useful to recall the state of affairs that existed in Ontario prior to the enactment of s. 239.

18 Prior to 1995, whether a meeting was open to the public or not generally depended not on the subject matter under consideration, but on the type of meeting being held. In Ontario, as well as under various provincial statutes, regular council meetings were generally open to the public while committee and other meetings were closed and could only be opened at the discretion of council (M. R. O’Connor, Open Local Government 2: How crucial legislative changes impact the way municipalities do business in Canada (2004), at p. 25). It is particularly noteworthy that one recurring problem mentioned in the 1984 Ontario Report of the Provincial/Municipal Working Committee on Open Meetings and Access to Information was that “some municipal councils employ lengthy, in-camera special and committee meetings to discuss matters under debate and then ratify their decision in full council in a few minutes, with minimal discussion” (p. 2). See also, the report of the Ontario Commission on Freedom of Information and Individual Privacy (“Williams Commission”), Public Government for Private People (1980). In the hope of thereby fostering democratic values, and responding to the public’s demand for more accountable municipal government, these reports recommended compulsory open meetings of municipal councils and committees, subject to narrow exceptions.

19 These recommendations were acted upon by the Government of Ontario in the early 1990s (Ontario, Ministry of Municipal Affairs, Open Local Government (1992), at pp. 2-3 and 31) and Bill 163 (the Planning and Municipal Statute Law Amendment Act, 1994, S.O. 1994, c. 23) adopted the open meeting requirement that is now contained in s. 239 of the Municipal Act, 2001. The open meeting requirement was intended to increase public confidence in the integrity of local government, by ensuring the open and transparent exercise of municipal power (Legislative Assembly of Ontario, Official Report of Debates (Hansard), No. 162, November 28, 1994, at p. 7978 (Pat Hayes)).

20 Against this brief historical backdrop, I will now review the relevant statutory provisions.

21 Section 239(1) of the Municipal Act, 2001 broadly requires that municipal meetings be open, while s. 239(2) lists the exceptions to this requirement:

239. (1) Except as provided in this section, all meetings shall be open to the public.(2) A meeting or part of a meeting may be closed to the public if the subject matter being considered is,(a) the security of the property of the municipality or local board;(b) personal matters about an identifiable individual, including municipal or local board employees;(c) a proposed or pending acquisition or disposition of land by the municipality or local board;(d) labour relations or employee negotiations;(e) litigation or potential litigation, including matters before administrative tribunals, affecting the municipality or local board;(f) advice that is subject to solicitor-client privilege, including communications necessary for that purpose;(g) a matter in respect of which a council, board, committee or other body may hold a closed meeting under another Act.

22 The imperative “shall” in s. 239(1) demonstrates that, in the normal business of municipal government, meetings will be transparent and accessible to the public. The importance of open meetings is reinforced by the permissive “may” in s. 239(2), which allows but does not require municipal governments to close a meeting when its subject matter falls within one of the seven exceptions. By contrast, s. 239(3), which does not concern us on this appeal, requires that a meeting be closed to the public if the subject matter relates to the consideration of a request under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56.

23 The words “committee” and “meeting” are broadly defined in s. 238(1) of the Municipal Act, 2001, as follows:

“meeting” means any regular, special, committee or other meeting of a council or local board.

“committee” means any advisory or other committee, subcommittee or similar entity of which at least 50 per cent of the members are also members of one or more councils or local boards;

It is uncontested that the closed meetings held on January 12 and 19, 2004, were meetings as defined in s. 238(1) since all of the members of both the Planning Committee and the Committee of the Whole were also members of the City Council.

24 Under the statute, even closed meetings are subject to some public scrutiny, as s. 239(4) requires public notice of the holding of the meeting and of its general subject matter. It reads as follows:

239. . . .

(4) Before holding a meeting or part of a meeting that is to be closed to the public, a municipality or local board or committee of either of them shall state by resolution,(a) the fact of the holding of the closed meeting; and(b) the general nature of the matter to be considered at the closed meeting.

The City concedes that it breached s. 239(4) in this case.

25 The open meeting requirement is further reinforced in ss. 239(5) and 239(6) with respect to the taking of a vote. A meeting may only be closed to the public during a vote where the closed meeting is permitted or required under subss. (2) and (3) and the vote is for a procedural matter only or for giving directions or instructions to certain specified persons. These provisions read as follows:

239. . . .(5) Subject to subsection (6), a meeting shall not be closed to the public during the taking of a vote.(6) Despite section 244 [which generally prohibits voting by ballot or other method of secret voting], a meeting may be closed to the public during a vote if,(a) subsection (2) or (3) permits or requires the meeting to be closed to the public; and(b) the vote is for a procedural matter or for giving directions or instructions to officers, employees or agents of the municipality, local board or committee of either of them or persons retained by or under a contract with the municipality or local board.

26 The City no longer contends that the impugned meetings concerned matters that were subject to litigation or solicitor-client privilege and, in my view, rightly so. The City’s sole argument is that its meetings fell within the exception in s. 239(2)(g) of the Municipal Act, 2001 because, under the provisions of the Planning Act, an interim control by-law may be passed without prior notice and without holding a public hearing. I therefore turn to the relevant provisions of the Planning Act.

3.2 Interim Control By-Laws Under the Planning Act

27 Interim control by-laws are powerful zoning tools by which municipalities can broadly freeze the development of land, buildings and structures within a municipality. The power to enact an interim control by-law has been aptly described as “an extraordinary one, typically exercised in a situation where an unforeseen issue arises with the terms of an existing zoning permission, as a means of providing breathing space during which time the municipality may study the problem and determine the appropriate planning policy and controls for dealing with the situation” (R. G. Doumani and P. A. Foran, Ontario Planning Act and Commentary (2004 ed. 2004/2005), at p. 46). As the wording of the Planning Act makes clear however, there are few statutory constraints on the use of this “extraordinary” power.

28 As the City correctly notes, the sole statutory precondition, which has been fulfilled in this case, is that council first direct that a land use study take place concerning the area covered by the interim control by-law. The governing provision is s. 38 of the Planning Act, the relevant parts of which read as follows:

38. (1) Where the council of a local municipality has, by by‑law or resolution, directed that a review or study be undertaken in respect of land use planning policies in the municipality or in any defined area or areas thereof, the council of the municipality may pass a by‑law (hereinafter referred to as an interim control by‑law) to be in effect for a period of time specified in the by‑law, which period shall not exceed one year from the date of the passing thereof, prohibiting the use of land, buildings or structures within the municipality or within the defined area or areas thereof for, or except for, such purposes as are set out in the by‑law.(2) The council of the municipality may amend an interim control by‑law to extend the period of time during which it will be in effect, provided the total period of time does not exceed two years from the date of the passing of the interim control by‑law.(3) No notice or hearing is required prior to the passing of a by‑law under subsection (1) or (2) but the clerk of the municipality shall, in the manner and to the persons and public bodies and containing the information prescribed, give notice of a by‑law passed under subsection (1) or (2) within thirty days of the passing thereof.(4) Any person or public body to whom notice of a by‑law was given under subsection (3) may, within sixty days from the date of the passing of the by‑law, appeal to the Municipal Board by filing with the clerk of the municipality a notice of appeal setting out the objection to the by‑law and the reasons in support of the objection.

29 The City argues that since the public has no right to advance notice of the proposed interim control by-law and no right to participate in the process of passing such a by-law, it follows that, at least by implication, the enactment of an interim control by-law is a “matter in respect of which a council . . . may hold a closed meeting under another Act” within the meaning of s. 239(2)(g) of the Municipal Act, 2001. I disagree.

30 The City’s duty to give advance notice and to hold a public meeting at which interested citizens have the right to make representations is entirely distinct from its obligation to hold its meetings in public. In order to understand what kind of notice and hearing is in effect dispensed with under s. 38(3), it is instructive to look at ss. 34(12) and 34(13) of the Planning Act which set out the usual notice and hearing requirements that must be met before a zoning by-law may be passed under that section. These provisions currently read as follows:

34.(12) Before passing a by-law under this section, except a by-law passed pursuant to an order of the Municipal Board made under subsection (11) or (26),(a) the council shall ensure that,(i) sufficient information and material is made available to enable the public to understand generally the zoning proposal that is being considered by the council, and(ii) at least one public meeting is held for the purpose of giving the public an opportunity to make representations in respect of the proposed by-law; and(b) in the case of a by-law that is required by subsection 26(9) or is related to a development permit system, the council shall ensure that at least one open house is held for the purpose of giving the public an opportunity to review and ask questions about the information and material made available under subclause (a)(i).(13) Notice of the public meeting required under subclause (12)(a)(ii) and of the open house, if any, required by clause (12)(b),(a) shall be given to the prescribed persons and public bodies, in the prescribed manner; and(b) shall be accompanied by the prescribed information.

31 The dispensation with any notice and hearing requirements under s. 38(3) of the Planning Act enables a municipal council to act expeditiously in passing an interim control by-law whenever circumstances may require that it do so and, as such, it is consistent with the nature of this extraordinary zoning tool. By way of example, RSJ filed affidavit evidence from a London City councillor describing how, in July 1992, the City Council became aware that a property owner had begun cutting down trees on his property, creating a risk of damage to the land and adjoining land. The property was zoned “Open Space”. London City Council therefore urgently convened a special session at 10:00 a.m. on July 3, 1992 to consider, discuss, and ultimately pass an interim control by-law in respect of a particular property. No advance notice or hearing was required. However, all discussions were conducted in open public session.

32 This example demonstrates the clear distinction between a citizen’s right to notice and participation, and his or her right to observe municipal government in process. The open meeting requirement set out in s. 239 of the Municipal Act, 2001 concerns the latter. In my view, nothing contained in s. 38 of the Planning Act authorizes the holding of a closed meeting within the meaning of the exception found in s. 239(2)(g) of the Municipal Act, 2001. A clear example of another Act that falls within this exception can be found under s. 2.1(7) of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E-9 (“Emergency Management Act”). It reads as follows:

2.1(7) The council of a municipality shall close to the public a meeting or part of a meeting if the subject matter being considered is the council’s approval for the purpose of subsection (5).

The Emergency Management Act requires municipalities to “develop and implement an emergency management program” in order to “identify and assess the various hazards and risks to public safety that could give rise to emergencies and identify the facilities and other elements of the infrastructure that are at risk of being affected by emergencies” (ss. 2.1(1) and 2.1(3)). Hence, for obvious security reasons related to the confidential nature of some information contained in this emergency management program, the Emergency Management Act explicitly allows municipalities to hold meetings that are closed to the public (s. 2.1(7)). In stark contrast, there is nothing concerning the nature of an interim by-law or in the language of s. 38 of the Planning Act that lends support to the City’s contention.

33 I therefore conclude that the City breached s. 239 of the Municipal Act, 2001 by closing its committee and council meetings of January 12 and 19, 2004 during its discussion of the interim control by-law No. C.P. 1438-33. The remaining question is whether the Court of Appeal properly exercised its discretion to quash the City’s interim control by-law for this illegality. I therefore turn to the question of remedy.

3.3 Quashing a By-Law for Illegality

34 RSJ’s application was brought under s. 273 of the Municipal Act, 2001. The relevant parts of this provision read as follows:

273. (1) Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality.(2) In this section,“by-law” includes an order or resolution.(4) The court may direct that nothing shall be done under the by-law until the application is disposed of.(5) An application to quash a by-law in whole or in part . . . shall be made within one year after the passing of the by-law.

35 “Illegality” is not defined under the statute. In its ordinary meaning, it is a broad generic term that encompasses any non-compliance with the law. However, s. 273 must be read in conjunction with other provisions. Under s. 38(4) of the Planning Act, an appeal from an interim control by-law lies to the Ontario Municipal Board (OMB). In turn, s. 36 of the Ontario Municipal Board Act, R.S.O. 1990, c. O. 28, gives the OMB exclusive jurisdiction “in all cases and in respect of all matters in which jurisdiction is conferred on it by this Act or by any other general or special Act”.

36 In first instance, the City raised the threshold question whether the court should entertain the application or defer the matter to the OMB. Based on principles established in Country Pork Ltd. v. Ashfield (Township) 2002 CanLII 41578 (ON C.A.), (2002), 60 O.R. (3d) 529 (C.A.), the application judge assumed jurisdiction, stating as follows (at paras. 26-27):

In determining whether the court ought to assume jurisdiction in this case, it is necessary to consider the nature of the attack: Country Pork Ltd. v. Ashfield (Township) 2002 CanLII 41578 (ON C.A.), (2002), 60 O.R. (3d) 529 (Ont. C.A.). Section 273(1) of the Act is “not a vehicle for consideration of the merits of a municipality’s decision to pass the bylaw, or whether it conforms to proper municipal planning principles” (at p. 542). Those matters are for the OMB and fall within its specialized expertise.

Based on the material before me and the applicants’ submissions during argument, I am satisfied that this application involves “a direct frontal attack on the underlying validity and legality of the bylaw” as set out in Country Pork (supra), thereby attracting the jurisdiction of the Superior Court. I am not being asked to rule on the merits of the City’s decision nor whether proper planning principles were considered.

37 In my view, this approach is sound. While the language in s. 273(1) of the Municipal Act, 2001 is broad, the supervisory jurisdiction of the Superior Court, when considered in context, is more limited and should not be read as usurping the role of the OMB and its specialized expertise. The question of jurisdiction is no longer before this Court. Nonetheless, the City argues that the overarching principle which should govern the court on a s. 273 review of a municipal by-law is one of deference. While this approach may be appropriate on a review of the merits of a municipal decision, in my view, the City’s argument is misguided here. Municipalities are creatures of statute and can only act within the powers conferred on them by the provincial legislature: Shell Canada Products Ltd. v. Vancouver (City), 1994 CanLII 115 (S.C.C.), [1994] 1 S.C.R. 231, at p. 273. On the question of “illegality” which is central to a s. 273 review, municipalities do not possess any greater institutional expertise than the courts — “[t]he test on jurisdiction and questions of law is correctness”: Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13 (CanLII), [2000] 1 S.C.R. 342, 2000 SCC 13, at para. 29.

38 In light of the particular statutory provision that occupies us — the open meeting requirement — I would add the following comment on the principle of deference. The dissent of McLachlin J. (as she then was) in Shell Canada is often cited as a broad statement of the deference that courts owe to municipal governments. In large part, this deference is founded upon the democratic character of municipal decisions. Indeed, McLachlin J. recognized that deference to municipal decisions “adheres to the fundamental axiom that courts must accord proper respect to the democratic responsibilities of elected municipal officials and the rights of those who elect them” (p. 245). Municipal law was changed to require that municipal governments hold meetings that are open to the public, in order to imbue municipal governments with a robust democratic legitimacy. The democratic legitimacy of municipal decisions does not spring solely from periodic elections, but also from a decision-making process that is transparent, accessible to the public, and mandated by law. When a municipal government improperly acts with secrecy, this undermines the democratic legitimacy of its decision, and such decisions, even when intra vires, are less worthy of deference.

39 The power to quash a by-law for illegality contained in s. 273(1) of the Municipal Act, 2001 is discretionary. Of course, in exercising its discretion, the court cannot act in an arbitrary manner. The discretion must be exercised judicially and in accordance with established principles of law. Hence, when there is a total absence of jurisdiction, a court acting judicially will quash the by-law. In other cases, a number of factors may inform the court’s exercise of discretion including, the nature of the by-law in question, the seriousness of the illegality committed, its consequences, delay, and mootness. For a helpful discussion on the discretionary power to quash a municipal by‑law, see Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 CanLII 82 (S.C.C.), [1991] 1 S.C.R. 326.

40 In this case, it is not contested that the City acted within its jurisdiction in passing the interim control by-law. There is only one statutory precondition to passing an interim control by-law, namely the stipulation in s. 38(1) of the Planning Act requiring a municipal council to direct that a land use study be undertaken, and the City complied with that condition. Further, the interim control by-law was voted on and passed during an open meeting of the City Council in compliance with the voting requirements for passing a by-law. However, illegality under s. 273 is not strictly confined to matters of jurisdiction. The failure to comply with statutory procedural requirements that do not go to jurisdiction may nonetheless provide sufficient grounds for quashing.

41 In this case, I would not interfere with the Court of Appeal’s exercise of discretion. The City’s conduct in closing the two meetings in question was neither inadvertent nor trivial. In fact its council meeting of January 19, 2004 was conducted in a manner that is rather reminiscent of the problems reported more than 20 years ago that led to the passing of the statutory open meeting requirement. It is worth repeating the words of the Working Committee quoted earlier: “some municipal councils employ lengthy, in-camera special and committee meetings to discuss matters under debate and then ratify their decision in full council in a few minutes, with minimal discussion”. In my view, the eight-minute public session during the course of which the interim by-law was passed without debate or discussion along with 31 other by-laws did nothing to cure the defect.

42 Further, while RSJ did not have the right to notice of the City’s intention to pass the by-law nor any right to make representations at a public hearing, it did have the right, along with other citizens, to a transparent and open process. The Court of Appeal was correct to conclude that the potentially draconian effects of interim control by-laws accentuate the need for the courts to jealously require that “the meeting in which an interim control by-law is discussed be open to the public as required by s. 239(1) of the Act” (para. 27). In these circumstances, I do not accept the contention that RSJ suffered no prejudice.

“Thank you, Mayor Villaraigosa. It’s a pleasure to be in L.A. – the greatest, most exciting American city, west of the Hudson River. (I say that as an entirely neutral observer of course.) I also want to thank the Annenberg School for hosting this conference. The last time I was in California, the Annenberg family hosted a dinner for Mayor Villaraigosa that I had the pleasure of attending. They’re a great family, some of whom live in my fair city, but most importantly, if they keep feeding me, I’ll keep coming back.

“I hope that tonight and tomorrow, everyone at this conference will share with us their thoughts about the governmental challenges we face in our nation, and how to meet them. Solutions will require a diversity of opinion and fresh approaches. So, in that spirit, let me begin by cutting to the chase of why I think this conference is necessary.

“America, the most wonderful country in the world, is at a crossroads. The politics of partisanship and the resulting inaction and excuses have paralyzed decision-making, primarily at the federal level, and the big issues of the day are not being addressed – leaving our future in jeopardy. We can accept this, or we can say – ‘Enough is enough!’ – and together, build a bright future for our country.

“I believe we can turn around our country’s current, wrong-headed course, if we start basing our actions on ideas, shared values, and a commitment to solve problems without regard for party.

“The point of this conference is clear: We do not have to settle for the same old politics. We do not have to accept the tired debate between the left and right, between Democrats and Republicans, between Congress and the White House. We can and we must declare a ceasefire – and move America forward.

“While a ceasefire is essential, it must also be followed by change. Real change – not the word, but the deed. Not slogans, but a fundamentally different way of behaving – one built on cooperation and collaboration. And it is needed now – because more than ever, Washington is sinking into a swamp of dysfunction. No matter who’s in charge, sadly today, Partisanship is King.

“It’s become a contest to one-up the other side and to score points for the next election. Decisions in DC these days are more political and less issue-based than ever before, and the consequences have been disastrous.

“When you go to Washington now, you can feel a sense of fear in the air – the fear to do anything, or say anything, that might affect the polls, or give the other side an advantage, or offend a special interest.

“This is paralyzing our government – and it’s leading our elected officials to push all the big, long-term problems onto future generations: health care, Social Security, budget deficits, global warming, immigration, you name it.

“Their inaction and partisan gridlock are destroying our relationships and reputation around the world.

“They are hurting our economic competitiveness, driving scientific and medical discoveries overseas, and jeopardizing our future as the land of hope and opportunity.

“They see the same problems we do – but instead of working to address their causes, and provide real, lasting solutions, they tinker around the edges, offering band-aids that do nothing to stop the bleeding, giving us platitudes and promises, but never the decisive and merit-based legislation and leadership we need. And then they blame the other side when the bleeding gets worse.

“Why do elected officials act this way? I think there’s one primary answer. They become hooked on partisanship because it offers easy answers. And then it consumes them. It becomes their most important priority.

“We’re talking about a serious and harmful addiction here – and unfortunately, there’s no ‘Promises’ clinic for partisanship. (If there were, maybe they’d stop making so many empty promises.)

“The United States can’t afford for this to continue. We need Washington to break its addiction, to end the gridlock, and to stop passing the buck to future generations. Leading from the front: It’s what built America.

“But these days, the federal government isn’t at the front – it’s cowering in the back corner of the room, ducking responsibility and hoping no one notices. The fact is, if our country is going to meet the challenges of this new century, all of us who care more about progress than political parties have to take responsibility for ending this corrosive culture of partisanship.

“It’s a waste of time pointing fingers and blaming the politicians in Washington – after all, we elected them. No, if we want to Washington to change – we, the individual voters they work for – have to hold them accountable.

“From my experience, ending Washington paralysis means bridging divides, but that does not mean just splitting differences. That’s a common political cop out. Public policy is not a zero sum game – and it doesn’t always have to be a partisan tug-of-war.

“Believe it or not, by thinking outside the box, and bringing creative ideas to the table…we can increase the overall benefits that both sides can achieve – and more importantly, what America can achieve.

“That’s what nonpartisanship permits: Getting big things done, producing real results, solving tough problems. And that’s what governors and mayors around the country have been doing – stepping in to solve national problems at the local level, and two great examples of that are Governor Schwarzenegger and Mayor Villaraigosa.

“City and state governments can lead the way, but in many cases, our actions are limited and pre-empted by federal policies. And more and more, those policies are failing to keep up with the times and failing to respond to our most-pressing problems.

“We need Washington to begin taking the same nonpartisan, results-oriented approach that is succeeding in cities and states. As I see it, this approach is based on five values of leadership that have the power to bridge the partisan divide, and it all begins with independence.

“There’s nothing wrong with belonging to a political party – about two-thirds of us do. But joining a party doesn’t mean you should stop thinking for yourself! Neither party has God on its side, a monopoly on good ideas, or a lock on any single fiscal, social, or moral philosophy. And anyone who says their party does, and the other party doesn’t, is either a fraud or just not a good student of history.

“For progress, ideas have to be evaluated on their merits, not their origins. Conventional wisdom must be challenged, no matter whose it is, and we must be willing to call ‘em like we see ‘em – no matter what party discipline demands. In other words – independence from politics, ideology, and petty selfishness.

“Nonpartisan leadership also requires good, old fashioned honesty and common sense, and I know you’ll hear a lot of it from the participants at this conference.

“Promising ‘a chicken in every pot’ without saying who’d pay for it, or a ‘secret plan to end the war’ or falling back on ‘motherhood and apple pie’ without taking on the underlying reasons why families are struggling to make ends meet – that’s not honesty. Nor is it honest to make decisions that are guided by political expediency or campaign donations – or by faith-based science, instead of real science.

“Honesty means having the courage tell the public the unvarnished truth – the downsides as well as the upsides, the costs as well as the benefits, and it means making decisions on the merits – and only on the merits.

“I would bet that all the participants at this conference will tell you that voters respect and reward those who rely on common sense to make their decisions and who refuse to let politics get in the way of doing the right thing for the right reasons. Taking this approach builds trust, and trust bridges divides. Governors and mayors are doing this every day, and Washington has to start doing it as well.

“Innovation is another value central to nonpartisan leadership. Innovation means discarding the tired old solutions that haven’t worked, digging down to the roots of a problem and finding creative new ways to attack its source. There are a lot of great ideas out there – and goodness knows I don’t have them all. But I’ve made my career encouraging others to develop them – and being willing to try them, even when no one else will.

“Sure, supporting new programs or policies that are untested requires vision and creativity – and that support may be unpopular. But you can’t be innovative unless you’re courageous. ‘Nothing ventured, nothing gained.’

“My experience has been that if you have the facts on your side, and you’ve taken a common sense approach – even if you must admit you’re not sure it will work, even if you have to tweak it as you go along, and particularly if you accept input from others – well, pretty soon, people will be lining up to join you because they’ll respect your willingness to try and your openness as to the risks. But it’s up to you to have the courage to go out on that limb first.

“That leads us to another key value of nonpartisan leadership: teamwork. Teamwork means reaching across the aisle – or down Pennsylvania Avenue – so that you can build the coalitions needed to get things done. But it also means having the best team at home. In both business and government, the organization is only as good as the people who work there.

“We need to hire the best, not the ‘yes men’ or the campaign contributors or the politically connected. I know that sounds obvious, but it’s not in Washington. Where in the Constitution is it written that ambassadors have to be big campaign donors? Passing over career diplomats to give big donors jobs as ambassadors to important foreign posts doesn’t help us overseas at the very time that international opportunities and problems should be central to the federal government’s planning and work.

“Where does it say we should care about campaign experience or party affiliation in filling federal jobs? That doesn’t get us the best and the brightest. Sadly, both parties do it, in both the legislative and executive branches, and both are wrong. I believe you hire the most qualified people, you empower them, you lead them and you hold them accountable.

“And that’s the fifth value of nonpartisan leadership: accountability. I built my company on the idea of getting and delivering better data and listening to what the data told me, even when the message wasn’t pleasant. By using data to manage, you can hold yourself and others accountable for results. But today, in Washington, instead of using data to make decisions and manage, the data is manipulated to justify ideological positions.

“That’s why ideologues throw good money after bad, while results-oriented managers fix problems before they invest more money. Too often, failing government agencies get bigger budgets, while successful agencies have their budgets cut – because government caters to those screaming the loudest, regardless of what they’re screaming about. In business, it’s exactly the opposite! You invest more in the most successful departments, and less in those that aren’t performing.

“Never – or almost never in government – do we promote those who deliver and dismiss those who don’t. Never – or almost never in government – do we admit when we fall short of our objectives. Never – or almost never in government – do we ourselves accept blame, and say ‘I screwed up.’ It’s always: ‘Mistakes were made,’ or ‘Round up the usual suspects,’ or ‘Let’s hold a hearing.’ Accountability? Good luck!

“All of these values that are essential to nonpartisan leadership apply to business, philanthropy, and government – but in government, they are too often absent, especially at the federal level. The good news is that mayors and governors around the country are embracing these values to tackle the big challenges – and let me touch briefly on a few of them, and how it’s possible to bridge the divides and make real change.

“Let’s start with education, because it’s an issue that Mayor Villaraigosa and I both care deeply about and it’s a challenge that both our cities share. When I came into office, New York’s school system was failing – badly. And that means we were failing our children.

“Tinkering at the margins for decades had done nothing. In New York, we needed to get at the source of the problem – the inefficient, ineffective, and unaccountable Board of Education. With support from school leaders and parent leaders, we won control of the system – and that’s when the hard work began.

“When we announced that we would end social promotion, when we pushed to lengthen the school day to provide extra help for struggling students, when we worked to expand the number of charter schools, when we cut the bureaucracy and re-directed that money into the classroom, – at each point, we were met with resistance from politicians and special interests. But in each case, we succeeded.

“We even raised our teachers’ salaries 43% – thereby winning union support and cooperation on critical issues, including a new program of merit pay for our principles. Change is hard, and I understand that. But you can’t solve problems by wishing them away, or studying them to death, or deferring to ideological advocacy groups.

“You have to make the hard decisions, take action, and hold people accountable for results: teachers, principals, parents, students – and, particularly with mayoral control, the Mayor and his appointees. The results? Steady progress that is real and has great promise for the future: Graduation rates have increased 20% and test scores have climbed 10% in Reading and more than 20% in Math. We still have a long way to go, but our children are finally getting the opportunities they deserve.

“As bad as our schools were five years ago, the outlook for New York’s economy back then was even worse. After 9/11, the conventional wisdom was that businesses would flee and that New York would return to the bad old days of the 1970s, when the City nearly went bankrupt. And there was good reason to be worried: We faced a major fiscal crisis and the largest budget deficits in our City’s history.

“But we learned a lesson from the 1970s: when you stop investing in the future, you begin a downward spiral – and we refused to let that happen. So we made the hard decisions to cut the budget without gutting it – insisting that agencies do more with less by achieving efficiency gains.

“And, as a last resort, we even raised property taxes and income taxes on high-earners so that we’d have the money to incent our municipal employees to continue providing the great services that underpin the City’s quality of life. As you can imagine, cutting spending and raising taxes didn’t make me the most popular man in town. (I like to think of it as a character building experience.)

“But I’ll tell you what it did do: it allowed us to close the huge budget deficits, balance the books and continue investing in the future: building new schools, revitalizing old industrial areas, creating the largest affordable housing program in the nation, supporting our cultural institutions, parks, libraries, and universities, and expanding world-wide advertising to attract businesses and tourists. And, because public safety is the foundation of economic growth, we developed innovative ways to crack down on crime and illegal guns. As a result, we’ve driven down crime by nearly 30%.

“None of the initiatives we’ve undertaken are owned by the Republican or Democratic party. They were built on the values of nonpartisan leadership – and they paid off. Today, New York City’s economy is stronger than ever.

“We’ve turned a $5 billion deficit into a $4 billion surplus. We drove annual unemployment last year to an all-time low, and our bond rating has climbed to an all-time high – Double AA. The income tax hikes have been rolled back. The property tax hikes have been offset through $400 rebates for homeowners.

“And this year, we’re not only cutting property taxes by 7%, we’re also making cuts of more than $200 million to the sales tax and to small business taxes. But we’re not just using the surplus to cut taxes – we’re also saving for the future.

“Consider this: the federal government requires cities and states to set aside funding for future retirees’ pensions – but not for future retirees’ health care, even though we have just as much of an obligation to pay their health care costs as we do their pensions. This makes no sense! Keeping a debt off the books doesn’t make it go away.

“In politics, there’s nothing so tempting for elected officials as a surplus. They treat it like found money, and instead of saving it for a rainy day, or for their elderly parents, they go on a spending binge. Of course, in Washington, they go on spending binges with or without a surplus. (After all, they print money, something we don’t do at the state or city level.) These binges mean that they don’t balance the budget, or shore up Social Security, or control health care costs.

“They just keep expanding programs and services and helping themselves to more and more pork barrel grants. A culture of instant gratification dominates Washington – and guess who’s going to pay the bill? Your children and my children.

“The health care costs that we’re saving for in New York highlight another serious problem: Not only is our country’s heath care system terribly expensive, it’s terribly ineffective. It offers no incentives for doctors or patients to seek preventive care. As a result, problems that could be prevented with cheap, basic medicines – or with smarter personal choices, especially around diet, exercise, and smoking – are not dealt with effectively until they become life-threatening and require expensive procedures.

“Even though American medicine is the most advanced in the world, we’re not delivering the simple preventive medicine that would allow us to avoid more diseases and live longer, healthier lives. In the U.S. we pay 50% more for health care than they do in Europe, but on average, we live about four years less. In effect, we’re paying more for the privilege of getting sick and dying early. Once again, it makes no sense. And once again, no one in Washington is talking about how to fix it.

“Instead, everyone talks about universal health insurance coverage – and that’s an important goal. But it’s not going to change the underlying reality of a health care system that is both too expensive and too ineffective.

“That’s why in New York, not only have we dramatically increased health insurance coverage… we’re moving toward a ‘pay-for-prevention’ system of health-care that rewards primary care doctors who succeed in keeping people out of hospitals. A key step in doing this is providing prevention-oriented electronic health records to help doctors deliver better preventive care.

“These records can also enable private insurers, as well as Medicaid and Medicare, to hold doctors accountable for their patients’ performance – and to pay more to the doctors who keep their patients healthy.

“Helping people live longer, healthier lives is also why we’re working so hard to increase screenings for breast and colon cancer and HIV, to keep criminals from getting illegal guns, to keep kids from starting to smoke – and to help more adults quit, to get more nutritious meals in our public schools… and to keep artificial trans fats out of our restaurants – and out of our arteries.

“Once again, these are not Republican or Democratic ideas. These are ideas that can cut to the root of our problems – and by doing that, have the power to cut through partisanship.

“We’re pursuing the same approach in our effort to reduce poverty – and if ever there was an area that called out for new ideas, this is it.

“For instance, we’re investing in a pilot program that offers financial incentives to poor families to encourage them to make the decisions that will help them rise out of poverty. Under the program, which is being funded with $50 million in privately raised money, you can earn cash if you keep your doctors’ appointments, maintain high rates of school attendance and participate in job training programs. This approach has worked well in Mexico, but it’s never been tried in the U.S.

“We don’t know if it will work here. But we do know two things: One, if we stick to the same old big government solutions, we’ll fail. And two: Financial incentives encourage higher performance – that’s human nature, and it’s the foundation of our economic system. Why shouldn’t government tap into that? It may prove to be the best anti-poverty program since the Earned Income Tax Credit – or it may not. But we’re not afraid to find out.

“Finally, I want to close by touching on an issue that an increasing number of people on both sides of the aisle now recognize as a major problem: global warming. The science is undeniable and more than any other issue, climate change highlights the need for long-term plans that begin tackling the causes of the problem now.

“California has been a leader in this effort, and I want to applaud both Governor Schwarzenegger and Mayor Villaraigosa for their bold plans. And let’s not forget Rich Daley of Chicago and Manny Diaz of Miami, who I think will go down as two of history’s great mayors or dozens of other mayors across the country who have been leading on environmental issues for many years.

“In New York, we’ve laid out our own detailed plans for reducing carbon emissions by 30 percent by 2030, investing in more clean energy sources and creating a truly sustainable 21st century city. And like California, where we are today, we’re going to hold ourselves accountable for meeting interim goals.

“Anybody can set goals for 2050 or 2070 – but we’ll never reach them unless we start taking real action now. That’s what California and New York are doing, along with many other cities and states. But the federal legislators, as usual, are way behind the curve – laughably setting goals for some far off time when they’ll all be dead and can’t be held accountable!

“With global warming, and with all the areas I’ve talked about, we face big challenges. We’re not going to solve them with small ideas, or with the same old approaches or with partisan attacks. That’s why – no matter what the issue – cities and states are experimenting with innovative new ideas and bold new approaches. And that’s the way it should be. As Justice Brandeis once said, states are the laboratories of democracy. We’re the pioneers.

“We can’t wait for Washington to come riding to the rescue. We’ve got to take the bull by the horns and do it ourselves. That means embracing pragmatism over partisanship, ideas over ideology, and results over rhetoric.

“Tonight and tomorrow, we’re lucky to have an all-star line-up of speakers, beginning with three people who know this issue as well as anyone: Judy Woodruff, Nancy Kassebaum Baker, and Harold Ford, Jr., who recently gave us the benefit of his wisdom in New York. We’re going to be hearing a lot of bold ideas and practical, common sense thinking at this conference.

“I’m looking forward to it – because together, we really have a chance to change America for the better. We know it won’t be easy – change never is. But when you start thinking about the potential benefits of what we can achieve, you start realizing that this challenge is too important to ignore.

“Partisanship may be King in Washington – but the rest of us don’t have to pay tribute. Standing at the crossroads, we have a choice: In one direction: the swamp of dysfunction. And in the other: the bridge that spans the divide.

“All of us in this room know the right way – let’s get moving. Thank you.”

No Money For Buskers But...

I thought you might be interested in seeing some of the CAO approvals around the time the Buskers was put in limbo.

Thank goodness though that we became a world-class tourist destination because of our sponsorship of Super Bowl, WWE Wrestlemania and soon the Grand Prix.

We are truly the City of Festivals----Detroit ones!

And I am certain that Councillor Hatfield, looking very regal as His Acting Worship while Eddie was away, was again titillated by the amount of time spent in public dealing with Bluesfest. That should get those public meeting hours up for the next in camera vs public report

A Secure Vote Of Confidence

Oh my goodness. Another vote of confidence for the Ambassador Bridge Co. from an impartial observer, yet a group that is fundamental to the border crossing.

I guess the US Government appreciates what the Bridge co. does at the border!

I have listed before all of the different objections that have been thrown at the Bridge Co. to try and stop them, all of which have fallen by the wayside since they were not valid ones:

Traffic volumes increasing......they are actually lower than 1999

Capacity at the bridge...it is only around 50% now

Congestion....new booths and the new ABCP centres should help by quadrupling capacity if Customs does their job too

Destruction of Sandwich or Delray or both...the Enhancement Project requires no new lands and stays within the existing bridge plazas

Redundancy...the old bridge does that and Neal Belitsky has also said the Tunnel provides back-up as would a new DRTP rail tunnel

Security....where's reverse customs

Bridge road...Canada and Ontario have not done their job while Eddie fiddles and stalls.

So it looks like the big weapon that is being pulled out now again is SECURITY. You saw the recent scare stories:

1) Ambassador Wilson at Mackinac, calling on superior forces for help as well:

"I would like to add a few additional points on the Ambassador Bridge and the plans for a new crossing.

This crossing is strategically very important for both of our countries, for the reasons I just stated...

Equally, we also need reliable infrastructure in place in case, god forbid, there is another major event that may affect our access across the border."

2) Mark Butler of Transport Canada:

"...a new gateway that distances itself from the Ambassador Bridge is essential to Canadian and U.S. economies.

DRIC has "rejected the twinning of the Ambassador Bridge," Mr. Butler says, citing concerns that Mr. Moroun's twinned structure would...also be vulnerable to a terrorist attack that could wipe out both bridges at once."

"What we do know is that any new crossing must be safe and secure"

3) Steve Tobocman, Michigan State House Representative

"I know that certainly on the Homeland Security front, twinning the Ambassador Bridge has raised huge issue, national security experts talk about redundancy and resiliency about how we would recover from a terrorist attack putting two bridges right next to each other

4) And who could forget our Senator Kenny.

Just so you do not think that security issues are unique to the Ambassador Bridge, here is what Thomas E. Garlock, Niagara Falls Bridge Commission general manager and President, Bridge and Tunnel Operators Associationsaid to the Senate Committee on Bill C-3:

"The security at these crossings is an issue that became far more serious in the past five years. It would be reasonable for members of the committee to think, "Well, there are federal agencies on each end of all these crossings. Are they not responsible for security?" The answer is no. When there is a bomb threat at one of my bridges, customs from both countries tell us, "When you get to the bottom of it and everything is clear, call us and we will come back." We have worked with law enforcement authorities on both sides of the border to address that kind of a situation."

So security concerns are out there obviously and they are not unique to the Ambassador Bridge.

How well is the Bridge Co. doing? We know that the Ambassador Bridge has 24 hour armed security seven days a week and that it is an advocate for reverse customs .

Read this and find out how well the Bridge Co. has done. It should now put the security concern to bed provided that the 2 countries introduce reverse customs at land crossings as they do in other locations like air, rail and marine crossings:

The busiest truck border crossing in North America is the Ambassador Bridge. It connects the U.S. Midwest city of Detroit, Michigan with the Canadian city of Windsor, Ontario. U.S. Customs officials says every year three million cars, 1.7 million trucks and $80 billion worth of goods pass through this gateway.

The Ambassador Bridge is also privately owned. Since September 11, 2001, the issue of private ownership of this critical juncture has come under fire from critics who want either more government control or public oversight. VOA's Brian Padden recently visited the site and has this report.

After September 11th, long lines and hours of delay were commonplace on the Ambassador Bridge when heightened security restrictions went into place. But today, traffic is not too bad on this bridge that connects the U.S. and Canada. On a normal day, approximately 8,000 cars and 6,000 trucks cross this bridge. 25 percent of all trade between the two countries passes through this juncture. High tech devices such as radiation detectors, license plate readers and high-speed computer databases have cut down the processing time to get through U.S. Customs.

Robert Perez, the U.S. Customs and Border Protection Port Director in Detroit, says this border crossing is both secure and efficient. "From a U.S. Customs and Border Protection standpoint,we consider ourselves in the port of Detroit, and specifically here in the Ambassador Bridge, the epitome of our layered enforcement practices," he said.

Still there is ongoing concern about security here because the Ambassador Bridge is privately owned and not accountable to any public authority.

Critics like Marge Byington say this lack of public oversight could lead to gaps in jurisdiction among the various federal, state, local and private agencies on both sides of the border responsible for security. She says a public oversight authority is needed to assure that the security agencies are working together. "I think it's best because you are dealing with two sides of the river, one Canadian, one U.S.," she explains. "It's an international effort and there should be cooperation on both sides between Canada and the U.S. about how it's run and participation in that process."

But Marge Byington represents the Detroit River Tunnel Partnership, which has proposed a new tunnel project to compete with the Ambassador Bridge. The president of the company that owns the bridge told VOA his company does cooperate with all appropriate authorities. The whole situation leaves many wondering whether private entities should be allowed to own critical infrastructure at a time of potential terrorist threat?

Homeland security expert David Heyman says private ownership, even when it comes to bridges, is the American way. He says providing security is the responsibility of both the private and public sectors."Across ports, bridges, any kind of critical infrastructure, nuclear power plants, you always have this fusion of security from the government, all layers, federal, state and local," says Heyman. "You have the private sector and all of those together, must come together. It is not unusual, but after 9/11 it is the norm today."

Ultimately, Heyman says, it is in the private sector interest to protect the public good."

Tuesday, June 26, 2007

The Capitol Saga Continues

Can you imagine...Councillor Lewenza had the nerve to try and put the matter respecting the Capitol Theatre on the Consent Agenda which meant approval to enter into a settlement with the Trustee. Was he serious? Was it his idea to do that on such a complicated matter? Fortunately, his colleagues did not agree.

In the end Council opposed entering into a proposed deal with the Trustee in Bankruptcy. I think Councillor Lewenza also opposed it (It's hard to tell on Cogeco how Councillors vote all of the time). If he did, then it shows what open debate can do. Something Councillors forgot when Councillors Halberstadt and Valentinis were away the other week.

The proposed transaction with the Trustee was set out in a 4 page document....the first two being the usual bland Administration Report on the matter. It is the last 2 pages however that are dynamite. They are posted above. Will someone's head roll for revealing the City's solicitor's memo since it is a shocker or will the person be promoted for honesty? Interestingly, no Councillor saw fit to deal with the part that I marked up.

Now that this memo has been filed publicly, I have demanded to see the entire file since the City has waived its solicitor-client privilege. I wonder what other goodies we can find buried there.

If you compare the memo with the covering Administrative Report, the differences are fascinating, like night and day. I wonder if this is how the City's backrooms work. What we are told in public may bear little relationship to what goes on behind the scenes. The Administrative Report does not give us the flavour of the advice given in the lawyer's memo.

Is it like this on other subjects that go before Council? While eating their lambchops, are the Mayor and Council given inside info by their staff that we mortals are not allowed to see and of which we know nothing? If so, then how can we possibly understand why a decision is made if we do not know the background? Is it all decided at dinner before the Council meeting and everything that goes on in public is a sham, a mere charade to meet the legal requirements of the Municipal Act on meetings?

It could be much worse too. As an example, it seems that if you dare disagree with anything that the Mayor and Council want to do, then it is fair game for you to be demonized. You can be called the "enemy" or it can be said that you have "political agendas contrary to the City's interests." You are evil in other words and anything goes to defeat you. I am disgusted by that and so should you, dear reader.

Of course, I will never see the file without a fight because that's how things are in Windsor...My $100,000+ ongoing Municipal Freedom of Information fight being a good example!

Before I talk about the Agenda Item, I had some interesting reading over the week-end that opened my eyes. I am going to post both items over the next few days because you should read them too.

The first article was a Supreme Court of Canada decision involving an Interim Control By-law in the City of London which the Court quashed. Here are several noteworthy comments by the Court about the role of Municipal Government:

It is particularly noteworthy that one recurring problem mentioned in the 1984 Ontario Report of the Provincial/Municipal Working Committee on Open Meetings and Access to Information was that “some municipal councils employ lengthy, in-camera special and committee meetings to discuss matters under debate and then ratify their decision in full council in a few minutes, with minimal discussion” (p. 2). See also, the report of the Ontario Commission on Freedom of Information and Individual Privacy (“Williams Commission”), Public Government for Private People (1980). In the hope of thereby fostering democratic values, and responding to the public’s demand for more accountable municipal government, these reports recommended compulsory open meetings of municipal councils and committees, subject to narrow exceptions...

The open meeting requirement was intended to increase public confidence in the integrity of local government, by ensuring the open and transparent exercise of municipal power...

Municipal law was changed to require that municipal governments hold meetings that are open to the public, in order to imbue municipal governments with a robust democratic legitimacy. The democratic legitimacy of municipal decisions does not spring solely from periodic elections, but also from a decision-making process that is transparent, accessible to the public, and mandated by law. When a municipal government improperly acts with secrecy, this undermines the democratic legitimacy of its decision, and such decisions, even when intra vires, are less worthy of deference...

The City’s conduct in closing the two meetings in question was neither inadvertent nor trivial. In fact its council meeting of January 19, 2004 was conducted in a manner that is rather reminiscent of the problems reported more than 20 years ago that led to the passing of the statutory open meeting requirement. It is worth repeating the words of the Working Committee quoted earlier: “some municipal councils employ lengthy, in-camera special and committee meetings to discuss matters under debate and then ratify their decision in full council in a few minutes, with minimal discussion”. In my view, the eight-minute public session during the course of which the interim by-law was passed without debate or discussion along with 31 other by-laws did nothing to cure the defect."

The second article was a speech by New York Mayor Bloomberg at the "Ceasefire! Bridging The Political Divide" Conference. His speech was about LEADERSHIP. The five elements of leadership that he identified are:

Independence...For progress, ideas have to be evaluated on their merits, not their origins. Conventional wisdom must be challenged, no matter whose it is, and we must be willing to call ‘em like we see ‘em – no matter what party discipline demands. In other words – independence from politics, ideology, and petty selfishness

Nonpartisan leadership also requires good, old fashioned honesty and common sense...voters respect and reward those who rely on common sense to make their decisions and who refuse to let politics get in the way of doing the right thing for the right reasons. Taking this approach builds trust, and trust bridges divides.

Honesty means having the courage tell the public the unvarnished truth – the downsides as well as the upsides, the costs as well as the benefits, and it means making decisions on the merits – and only on the merits.

Innovation is another value central to nonpartisan leadership. Innovation means discarding the tired old solutions that haven’t worked, digging down to the roots of a problem and finding creative new ways to attack its source. There are a lot of great ideas out there – and goodness knows I don’t have them all. But I’ve made my career encouraging others to develop them – and being willing to try them, even when no one else will

Teamwork. Teamwork means reaching across the aisle – or down Pennsylvania Avenue – so that you can build the coalitions needed to get things done. But it also means having the best team at home. In both business and government, the organization is only as good as the people who work there.

Accountability. I built my company on the idea of getting and delivering better data and listening to what the data told me, even when the message wasn’t pleasant. By using data to manage, you can hold yourself and others accountable for results.

After you read the comments by the Supreme Court, is Windsor the kind of City where one can hold one's head up high and say "It's not like that in my City. We have open and transparent City Government here." You should remember that

"City council conducted almost 50 per cent of the city's business behind closed doors during the first three months of the year, more than double the ratio during the last quarter of 2006. There have been 10 in-camera meetings spanning 20 hours this year and 10 public meetings spanning 24 hours. The three months prior saw council meet privately for eight hours and publicly for nearly 26."

When you read what Mayor Bloomberg has said about Leadership, can we say that our Mayor and Council have those traits. You tell me.

The Capitol Theatre Memo puts it all in a perspective for me, no matter what the outcome at Council was:

Was the public ever supposed to see the lawyer's memo or was it for Council's eyes only? It is extremely damaging if it was never to see the light of day as to the way this City carries on business.

Nothing is ever as it seems in this City. Was this deal presented expecting it to fail---Councillor Dilkens got a nice headline calling the deal a sham---so that nothing happens with the Capitol for 2 years? By that time, who would want it so that if the Trusdtee happened to win, it would be purchased for relatively nothing anyway.

The poor Councillors really have no expertise in handling matters this complicated. It is not meant as a criticism; it is just not their professional background. No wonder we have big problems that do not get resolved here or take forever to do and for which we pay out large sums for lawyers and consultants. They decided not to do the deal but have no knowledge about how to bring this matter to a satisfactory end without litigation. Where is Administration and the hired gun offering a solution, not litigation, to help them out?

The CAO, when pressed at Council, did not recommend the deal. Why didn't theReport say this rather than leave it to Council for "direction."

If there is an easy way to do something or a complicated way, the complicated way wins out every time

This whole matter could have been dealt with easily if what had been agreed to between the Capitol Theatre Board and the City had been carried through. It has mishandled

Even after the bankruptcy, this matter could have been resolved with a few phone calls

What happened to the City's argument that "I do believe the city has a strong case and needs to continue taking legal steps," said lawyer William Wills, who is representing the city." If the City's position is so strong, why would the City's lawyer bring forward the offer and not recommend rejection? Why would the City even consider offering to pay out $1.1M when it claims it has a $1.83M mortgage that would allow it to take over the lands and buildings. Clearly there are real concerns

How would the other arts groups in the city have suffered if the $1.1M was paid out to "buy" the assets

Oh I understand that this is all a big circle with the money supposedly coming back via rent so the City was not really paying out anything but what if it did not...more lost taxpayer money

Would a Court agree that this was a "fair market value" deal with a supposed payment of $1.1M to the Estate.

Would Eddie have been the CEO of yet another company, the non-profit theatre group

How much did the Capitol need to stay out of bankruptcy? Do you think the fee of $100K that the City would have paid to the Trustee and its lawyer as well as the City's legal expenses could have been used to save the Capitol instead.

Who are the parties with a political agenda?

The memo tells me a lot. It would appear that the City may not have a strong legal position and was bluffing to try to scoop the assets with their legal threats. The Administrative Report is misleading without the memo. If the lawyer's memo was not there, it made it look like the City was paying out $1.1M for the assets but did not say that the money could come back via a 5 year lease payment. If you wanted to bid against the City for the assets in the bankruptcy the ante would seem very high with this Report. It would scare most people off. No wonder the offer was meant to be kept confidential.

Most of all this whole discussion explains to me why this City cannot solve the border problem or why the arena deal was such a fiasco or why the Tunnel deal seems to be changing all of the time or why the airport was bleeding red ink etc etc etc. It is why everything is so secret here.

Of course the Report was posted late Friday afternoon even though the Report was prepared on the 21st....why should anyone know about it until the last minute. Who needs to hear delegations? I also find it interesting that only the CAO signed the Report but then again, he really runs this City.

Oh and just to reveal my bias...I am one of those people who might have challenged all of this since I apparently have "political agendas contrary to the City's interests." And the Trustee knows all about me too since I asked what the procedure would be for dealing with the assets! I have an interesting idea about what could be done with the Capitol but it must be done immediately before it is too late.

You may remember that I said in a BLOG that I could help solve this matter for the City but no one has called me to take me up on my offer. Seeing the size of the Trustee and legal fees, I may have offered my services at too low a fee!

About Me

Here are some musings about the state of events in Windsor from the perspective of an interested observer of local politics.
Sometimes we just have to help out! I have the luxury of time to do and say what I want.
Agree with me or disagree, it does not matter as long as you take an active role in ensuring that the Community we live in prospers.
Anonymous "Whistleblowers" everywhere are invited to write!! I'll check out also interesting "rumours" and will write about them.